Krzysztof Śmiszek, Vicebodnar And Dr. Legal, he triumphs. In his opinion, the presidential pardon initiative proves 1 thing – PAD yet understood his mistake of 16 November 2015.
W an interview with Onetu Smiles without inhibition:
— We are dealing with an absolute misunderstanding by the president of his function as well as the function of certain institutions in Polish law, specified as institutions of pardon. A pardon before a final judgement is given is like giving a divorce during a period of engagement.
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Because all lawyers, etc., etc. We have heard adequate of this in fresh years to remind us again.
But someway it escapes memory, including mentioned (~na?) Śmiszka, that the problem of applying the law of grace, and specifically the minute of application, was mostly not as controversial as it only became after the Polish-Polish war was started by the failure of the position.
In fact, a breakthrough in the knowing of the presidential prerogative became the resolution of the alleged "seven" SN judges dated May 31, 2017 (I KZP 4/17). However, it should be noted that this resolution is not a alleged legal rule, which means that an SN in another case may, but request not respect it.
It's most likely a deliberate action. Imagine that in the presidential election of 2025 the candidate wins Exotic Coalition 13 DecemberSimon Holovnia. At the end of the year, however, the Tusk government falls down, the coalition falls apart, and the fresh 1 under Kaczyński's wire includes governments.
Tusk, Sienkiewicz and respective more face criminal justice. And then Simon “Beksa” Holovnia enters the action and pardons the defendants even before the judgement of the First Instance is given, so they leave the detention.
It is not essential to presume that the inactive unchanged Criminal Chamber of the SN will then recognise the presidential prerogative.
As he noted Jurek Orwell – All animals are equal, but any are more equal than others.
WHowever, let us turn to the abovementioned resolution.
SN stated:
I. The right of grace, as the power of the president of the Republic of Poland as defined in the first conviction of Article 139 of the Constitution of the Republic of Poland, may be exercised only against persons who are found guilty by a final judgement of the court (the sentenced persons). Only in this regard, there is no breach of the principles set out in Article 10 in Articles 7, 42(3), 45(1), 175(1) and 177 of the Constitution of the Republic of Poland.
II. The application of the law of grace before the date of finality of the judgement has no procedural effect.
The reasoning on which the above constitution is based is simple as the construction of a brick.
Currently, in the 1997 Constitution of the Republic of Poland, the law of grace is standardized in Article 139; this provision reads: The president of the Republic applies the law of grace. The right of grace shall not apply to persons convicted by the Court of State.
From the list of regulations of the 2 constitutions passed before 1939, and in peculiar the provisions of the Constitution of 1935, cited as: “.. give or alleviate the sentenced penalty, imposed by a final decision, or revoke the effects of conviction” and a very general expression as to the law of grace contained in the Constitution of 1952, or the tiny Constitution and the current fundamental law, the conclusion is drawn that post-war constitutions in the content of the law of grace have a different, broader scope, meaning that this law may besides apply to persons who are not convicted of a final judgment, and therefore, it is possible to apply in its framework individual abolition (e.g.B. Banaszak, Constitution of the Republic of Poland. Commentary, Warsaw 2012, p. 768.; the same, Presidential right of grace in Poland, Acta Universitatis Wratislaviensis, Review of Law and Administration L, Wrocław 2012, p. 34; A. Murzynowski, Reflections..., p. 490; the same: Pardon..., p. 128; T. Grzegorczyk, J. Tylman, Polish Criminal Procedure, Warsaw 2014, p. 1008; S. Waltos [w:] S. Waltos, P. Hofmanski, Criminal Process. strategy outline, Warsaw 2013, p. 559; K. Kaczmarczyk-Kłak, Law of Grace..., p. 431-439). It should be stressed decisively that supporters of the admissibility of the right of grace of individual abolition, and therefore, of the application of an act of grace before the judgement is finalised, are based only on a broad comparison of the content of only provisions which have standardised the law of grace and, moreover, on the claim that there are no restrictions in the content of Article 139 of the Constitution of Poland (except the second sentence). Moreover, there is simply a categorical claim that no public authority body (and therefore, besides those authorities mentioned in the Constitution of the Republic of Poland) can control the act of grace and its content due to the nature of the act (e.g. B. Banashak, Constitution..., p. 770; K. Kaczmarczyk-Kłak, Law of Grace..., pp. 343-344), although this position besides stems from another argument, i.e. the acceptance that the law of grace can be applied only after the judgement has been finalized, due to the fact that only then does the law of grace not consist in the application of justice (cf. J. Boć [ed.] Constitutions..., p. 225). In the above context, the ultimate Court, in its extended composition, notes the apparent request to search a historical explanation in the explanation of the concept of the law of grace as the competence of the head of state.
Apart from the necessity and this method in the explanation process, it is besides justified by the wording of the preamble to the existing Constitution of Poland, in which it refers to the "best traditions of the First and Second Republic".
In noting these views, the ultimate Court in its enlarged composition is forced to conclude that they are not supported by a deeper argument.
(with: reason for the resolution I KZP 4/17, p. 21, 22)
The Togs of the Magistrates of the Criminal Chamber so decided to explain how Article 139 of the Constitution should be understood in order to be in accordance with a law specified as they understand.
...the second conviction of Article 139 of the Constitution of the Republic of Poland is crucial in the process of determining the content of the law of grace. Since, on an exception, it clearly defines the position of persons who cannot be beneficiaries of the right of grace, at the same time it expresses positively what is not included in the first conviction of Article 139 of the Polish Constitution. The second sentence, as an exception to the principle, must express the same thought which is included in the first conviction of Article 139 of the Constitution of the Republic of Poland. If, therefore, the right of grace is excluded for persons convicted by the Court of State, it should be concluded from that standard that the right of grace applies to another persons convicted.
(from: Justification I of KZP 4/17, p. 25)
Let us compare both.
1. The president of the Republic applies the law of grace.
2. The right of grace shall not apply to persons convicted by the Court of State.
According to the “sages” of the SN, the second conviction importantly limits the subjective scope of persons subject to the presidential right of grace (first sentence).
Imagine, then, that the court of First Instance sentences Mr. X to imprisonment of 12 years. According to Polish practice, which is unfortunately based on the law, in this case inter-institutional detention is mandatory.
According to data collected by Court Watch Polska Foundation specified detention is applied in 72% to 92% of cases.
Technically, the period of arrest in the case is limited. But... it can be extended in justified cases.
Thus, including the period of actual imprisonment in preparatory proceedings, first instance proceedings, waiting for an appeal hearing, which does not gotta end the first time, we have a situation that an innocent man, in accordance with the Constitution, will actually hold a word of imprisonment longer than the Presidential term. A fewer years ago, I was at a trial where the suspect was in temporary custody... Six years. The court sentenced her to 6.5 years of imprisonment (as requested by the prosecutor), and so after the sentence, the convict could yet go home. Six months' probation. In specified a situation, the application of the law of grace after a final judgement would be something fleeting, unreal, only existing as a constitutional evidence to encourage the hearts of people who sometimes have no contact with the justice strategy throughout their lives.
Because what would it gotta do if the convict had already served 92% of the sentence?
I have already left out the common situations erstwhile tiny thieves were held in temporary custody for a year, and then a advanced fine was ordered for which the time of actual imprisonment was counted. Well, it was a fine accompanied by a conviction of parole, but...
A skillful and even average juggling of court dates would let to destruct e.g. uncomfortable politics for over 1 term.
We must remember that Poland in the European Union is second in terms of the average duration of temporary detention.
In the meantime, the ultimate Court is proposing that we wait...
However, erstwhile examining the resolution of the SN, it is hard not to announcement the serious logical mistake it is charged with. It's called. reverse exciseation error. It is most mostly a general sentence.
For example, Vicebodnar The communicative is gay, and we think all the vice ministers are gay. Even Deputy Minister Maria Ejchart (still late Ejchart-Dubois). ;)
On the another hand, My wife Grażyna is simply a teacher We think each teacher's name is the same.
The prohibition of the application of the right of grace to a strictly defined group of persons (as determined by the Court of State) is without respect to the recognition of a ellipse of possible beneficiaries of the pardon.
Moreover, as I have shown, in many cases it would not have made sense due to its applicable implementation before the final judgement was given.
The ultimate Court in a circumstantial composition to support its position evokes... Annex to the Regulation of the Prime Minister of 20 June 2002 on the "Rules of Legislative Technology" (Justification p. 24). Let's take a look.
§ 6. The provisions of the Act shall be edited so that the addressees of the standards contained therein express the intention of the legislator.
§ 7. The sentences in the Act are edited in accordance with the commonly accepted rules of syntax of the Polish language, avoiding many complex sentences.
§ 8. 1. The law must usage correct language expressions (determinations) in their basic and mostly accepted sense.
If we extend these principles to the Constitution, as the said "seven" does, we come to the conclusion of the only possible – Since in the first conviction of Article 139 of the Constitution there is no mention of convicts, that was the intention of the legislator.
The presumption that the absence of a definition of a ellipse of possible beneficiaries of a presidential act of grace means ‘punished’, and that, in legal terms, is an abuse.
Moreover, pursuant to paragraph 8(1) of that Regulation in the Act, usage language phrases correctly in their basic and commonly accepted sense.
I leave out that for the average Pole anyone who has heard a punishment conviction in First Instance (and so not valid) becomes a convictedbut the same language is spoken by judges!
A number of logical and legal arguments propose that it cannot be pardoned a individual convicted by an invalid judgement - said justice Marta Kożuchowska-Warivoda from the Association of Polish Judges Iustitia (...).
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What does that mean? Nothing more than the fact that in order to accomplish the political goal of the "seven" bent not only the law, but besides the basic principles governing the Polish language.
This is simply a small little amazing erstwhile we look at the individual judges of the celebrated "seven" separately.
Under the resolution of May 31, 2017, the following are signed: SSN Jarosław Matras (president, rapporteur), SSN Jerzy Grubba, SSN Dariusz Kala, SSN Przemysław Kalinowski, SSN Zbigniew Puszkarski, SSN Dorota Rysińska and SSN Barbara Skorkowska.
Przemysław Kalinowski - was in SN in 1997. In the mid-1980s he ruled in the Warsaw territory Court. During that period, he besides went on a delegation from the Ministry of Justice to fellow Hungarians. Kalinowski was an expert publishing legal comments to the decree on the state of war. He besides published in the bulletins of the Academy of Interior and MO. His father Stefan Kalinowski during the period of Stalinism was delegated to SN, ruling there later as judge.
Zbigniew Puszkarski - sentenced in 1986 in a trial manipulated by SB. In the course of the court proceedings, the Ministry of the Interior wanted the police working methods to stay undisclosed. It's about the case that Puszkarski convicted a militiaman of a organization from a secret informant of stolen items. The media had already suggested in 2006 that Pushurski was elected as a trusted justice of the resort. After the systemic changes, Puszkarski granted a renewal of Zyta Gilowska's mirroring, arguing that after the resignation he was not subject to the authoritative vetting. In 2014, as a justice from the composition of SN Puszkarski, he maintained his remission in force due to the statute of limitations of the trial of erstwhile investigating officer UB Tadeusz K., accused by the IPN of the fact that during the Stalinist period he utilized savage interrogation methods. As of 2010, he remained in SN.
Dorota Rysińska – she ruled in the 1980s in political trials. She is the wife of the justice of the Court of Appeal at the remainder of Paweł Rysiński, who acquitted Beata Sawicka and Mirosław Wądołowski in a loud corruption case. Her parent Danuta Sandomierska was besides a well-known judge, a associate of the PZPR. Since 1967, she has been Vice president of Płock region Court since 1972. In the state of war, she was president of the Provincial Court in this city. justice Sandomierska collected medals and prizes of the Polish People's Republic. Golden Cross of Merit or Bronze Medal of Merit for National Defense, or Bronze Medal "For Merit in the Protection of Public Order". She was a associate of KW PZPR in Płock, sitting there on the review committee. Her daughter, justice Dorota Rysińska, began working for SN in 2000. She ruled in it until July 2018.
(for: ]]>https://independent.pl/polska/pupile-security-and-enthusiac-party-komunis...]]> )
More.
Barbara Skorkowska, August 30, 2010 appointed to the SN by Bronisław Komorowski, in 1980, she graduated from the Faculty of Law at the University of Wrocław; in 1984 she was appointed as an Asessor of Court in the territory of the Provincial Court in Katowice; in 1986 she was appointed as justice of the territory Court in Gliwice, and since 1989 a justice of the territory Court for Warsaw-Mokotów; in 1994-1995 she was appointed to the Provincial Court in Warsaw and 1995 appointed as justice at the ultimate Court; in the first half of 2003 she was delegated to justice in the Court of Appeals in Warsaw and later in the same year she was appointed as justice of that Court; in 2009 and January 2010 she was appointed to service as justice at the ultimate Court.
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Only 2 of the above groups received judges' nominations in the 3rd Polish Republic. This means that as many as 71% of the "sevens" are people called to justice position by the communist Council of State.
Only 1 of them has a PhD (Darius Kala). For that Jarosław Matras made himself known as a “warrior” justice with PiS.
In fact, it would only be adequate to exclude him from the jury.
As I wrote at the outset ResolutionI KZP 4/17 has no legal basis, and thus only in force in a contractually-called case Kamiński and Wąsika.
Thus, the judges of The most crucial court They left their way for the future, erstwhile faced with the expected change of president and equally likely collapse Exotic Coalition the situation of the prosecution of Mr Bodnar, Mr Sienkiewicz or Mr Tusk may arise.
If the president becomes “Bek”, then he will pull out the collar of today's partners.
12.01 2024
photo of pixabay
